Kenya: Sharp Divisions Over Disputed Poll Results
The Nation (Nairobi)
7 February 2008
Posted to the web 7 February 2008
Bernard Namunane and Lucas Barasa
While the Government insisted that the matter should be sorted out using legal means and through constitutional changes, ODM argued for an arrangement where the two sides would share power briefly to prepare for a fresh presidential race.
But both sides were agreed that there should be no recounting and retallying of the Presidential votes, whether the matter is sorted out through an election petition or a judicial commission of inquiry.
The Government adopted legal reasons to oppose a recount and retallying, while ODM questioned the independence of the Judiciary and integrity of the Electoral Commission.
The two sides were tackling the most contentious issue of the negotiations, which entered the seventh day. The talks were made necessary by violence that has led to the death of nearly 1,000 people and uprooting of 270,000 others from their homes after President Kibaki was declared winner of the General Election.
The two sets of negotiators had held early morning meetings with their principals to brief them on the progress of the talks and the positions they were to advance in the mediation meeting at Serena Hotel.
President Kibaki met Cabinet ministers Martha Karua, Sam Ongeri, Moses Wetang’ula and Mbooni MP Mutula Kilonzo at his Harambee House office for one hour from 9.30am.
The Government team of Cabinet ministers Karua, Ongeri, Wetang’ula and MP Kilonzo hinged their arguments on legal grounds to disagree with and rule out the options on the table of the National Dialogue and Reconciliation Committee.
They ruled out a re-count of Presidential votes on grounds that such an exercise can only be conducted if the aggrieved candidate demands it at a polling station or through a court order in the case of a petition. ODM, they argue, has not pursued any of the options.
They also state that re-tallying of the presidential votes from Form 16As for every constituency in the country was not legally possible. Re-tallying, they argue was permissible once the aggrieved candidate petitions the ECK within 24 hours of the tallying and the commission is obliged to make a decision within 48 hours on receiving the petition. “No re-tallying was demanded by ODM according to Regulation 36 (of the National Assembly and Presidential Elections Act),” they say.
The Government negotiators held that a re-run of the Presidential election was out of question since none of the candidates in question – President Kibaki and Mr Odinga – failed to score 25 per cent of the votes in five provinces.
Also, the Government rules out the possibility of a forensic audit of the pre- and post-election environment on grounds that a civilian has already filed a case in court on the matter. They state that before the High Court is case EP No. 2 of 2008 filed by Mr Elphas Wesangula against President Kibaki and Mr Odinga.
“It would be sub judice to discuss the matter that is before a court of law,” they state.
Similarly, they advance that a judicial commission of inquiry into the Presidential elections cannot be established because it has not been sought by ODM through a petition. “Besides, ODM’s lack of confidence in the Judiciary defeats this option,” they add.
In respect to what they regard as the last option, the Government argues that the electoral court process cannot be applied because ODM decided not to file a petition. “And by all means, the time for such an action has lapsed,” they state.
Meanwhile, ODM leader Raila Odinga held a meeting with his team of negotiators that is made up of his deputy Musalia Mudavadi, Pentagon member William Ruto and MPs Sally Kosgei and James Orengo at the Pentagon House in Lavington, Nairobi.
Sources at the two meetings said that stakes for each side were high and constant briefing and de-briefing sessions with their party leaders were necessary.
So hot is the item of how to overcome the presidential elections dispute that even the lunch sessions that were hitherto attended by all members of the dialogue team were Wednesday skipped for the second day with representatives dashing to inform their leaders on the progress.
The talks have entered the crucial stage this week after easy agreements on ending of violence and speedy delivery of humanitarian assistance last week.
On Wednesday, the talks, chaired by former UN secretary-general Kofi Annan, were boosted by the return of former Tanzania President Mkapa in the morning and of former South African First Lady Graca Machel in the afternoon.
Emerging from the talks Wednesday evening, Mr Moses Wetang’ula and Mr Ruto sounded optimistic that the talks were heading in the right direction.
Said Mr Wetang’ula, the Foreign Affairs minister: “The general feeling is that we have to move forward with the talks.”
On his part, Mr Ruto said they were satisfied with the pace. “The talks are going on well and we are satisfied with the progress,” he said.
ODM were the first to make their presentation on Tuesday afternoon during which they tabled their audited figures showing that Mr Odinga should have won by a margin of 246,987 votes.
Their audit, they submitted, had found out that President Kibaki scored 4,109,014 votes while Mr Odinga got 4,356,001. The ECK announced that President Kibaki won the elections by garnering 4,584,721 votes against Mr Odinga’s 4,352,993.
In the light of that, they sought formation of a transitional government in which it will share executive authority with PNU. The government would be made up of ministers from the two parties based on their strengths in Parliament. They said the government would be in power for between three and six months during which it would put in place far-reaching reforms in preparation for an election.
The reforms include: reconstitute the Electoral Commission of Kenya, clean up the voters registers, and enact essential constitutional and other legal reforms that would support the transitional government and pave way for elections.
Essential reforms reflect the 10-point minimum package at the centre of debate between the Opposition and the Government just before the last elections.
Among the proposals were to reduce the excessive powers of the Presidency, requirement that a winning presidential candidate garners 50 per cent plus one vote, empowering the ECK to deal with election malpractices and giving Parliament powers to control its own calendar.
Also in its submissions, ODM says that a re-run of the Presidential elections is “absolutely” necessary to determine the clear winner between President Kibaki and its leader Mr Odinga.
ODM negotiators were clear that a re-count of the Presidential vote was untenable in the face of the questionable integrity of the ECK. They refer to the alleged manipulation of the votes at the ECK, the discrepancies in Form 16As and lack of unanimity among the commissioners on the accuracy of the final results.
The ODM delegation at the negotiations was categorical that their party would not take their case to the law courts as they had no confidence in the Judiciary.
But the Government team argued that the way forward to ending the political crisis was a raft of Constitutional, legal and institutional reforms to meet the expectations of the public.
Meanwhile, Government Spokesman Alfred Mutua said the Government was fully committed to dialogue in the spirit of peace and national reconciliation.